Dr. John Eastman is the Henry Salvatori Professor of Law & Community Service at
Chapman University School of Law, specializing in Constitutional Law and Legal History. He also served as Dean from 2007 until 2010. He is the founding Director of the
Center for Constitutional Jurisprudence,
a public interest law firm affiliated with the Claremont Institute for
the Study of Statesmanship and Political Philosophy. He has a Ph.D. in
Government from the Claremont Graduate School and a J.D. from the
University of Chicago Law School. Prior to joining the Chapman law faculty, Dr. Eastman served as a law
clerk to the Honorable Clarence Thomas, Associate Justice, Supreme Court
of the United States, and to the Honorable J. Michael Luttig, Judge,
United States Court of Appeals for the Fourth Circuit. He practiced law
with the national law firm of Kirkland & Ellis, representing major
corporate clients in federal and state courts and with respect to State
Attorneys General investigations, in complex commercial contract
litigation, and in consumer litigation.
So we can assume he's smart, even though he is a conservative. Here is his assessment of the Roberts' decision on Obamacare. This communication was sent to Mark Meckler and posted by the NorCal Tea Party Patriots. I repost it in its entirety here.
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Hard to know where to begin. As I said in my preliminary
assessment yesterday, the opinion by Chief Justice Roberts upholding the
Affordable Care Act (aka Obamacare) as a valid exercise of Congress's
taxing power is a sell-out of constitutional principle of the first
magnitude. (And yes, for those that caught that typo in the original
post, I do know the difference between principal and principle-- but it
appears that the Chief, in his role as "principal" of the judicial
system, may have forgotten his primary role is to uphold constitutional
"principle"!).
It is also fundamentally wrong on
constitutional law; the doctrine of separation of powers; the meaning of
a direct tax; and the idea of limited government and enumerated
powers.
It also appears that the Chief may have
switched his vote after the original conference and circulation of
opinions. Rather than repeat all the evidence for that claim that
others have noted, I'll just point you to the more insightful of the
commentaries on this point. Short version: the joint dissenting
opinion by Justices Scalia, Kennedy, Thomas and Alito refers to Justice
Ginsburg's concurring opinion as a "dissent," is written as though it
were the majority opinion, and says that if the individual mandate were
really a tax, they'd have to address the close constitutional question
of whether it was a direct tax--something they don't address even
though, as the case was ultimately decided, the issue was squarely
presented.
See in particular
on this at Salon,
over at National Review, and
at Legal Theory Blog.
If
that is indeed what happened, and the Chief's motive was to prevent the
Court from being "politicized" and therefore having its legitimacy
undermined (in the eyes of elite opinion, that is), he has done just the
opposite, both for the Court and his own here-to-for stellar
reputation. Indeed, if that is what happened, the Chief should resign;
he would not be fit to continue in office. As the great Chief Justice,
John Marshall, recognized more than two centuries ago in Marbury v. Madison,
it is "the very essence of judicial duty," the reason a "judge swear[s
an oath] to discharge his duties agreeably to the constitution," that
the judge must find "that a law repugnant to the constitution is void."
Then again, in McCulloch v. Maryland, he
added: "should Congress, under the pretext of executing its powers,
pass laws for the accomplishment of objects not entrusted to the
government, it would become the painful duty of this tribunal . . . to
say that such an act was not the law of the land."
We
have a judiciary independent of the political process precisely so that
can withstand such political attacks and uphold the Constitution. (And
oddly, it should be even easier to do so when the political opinion of
the majority of the American people is so strongly opposed to the law).
But let us for the time being give the Chief the benefit of the doubt. What, then, of his constitutional arguments.
The
law is unconstitutional as an exercise of Congress's power to regulate
commerce among the states, he tells us (and on this point he is joined
by Justices
Scalia, Kennedy, Thomas and Alito), because Congress cannot force people into commerce in order to gain authority to regulate.
These
were the grounds on which Congress passed this bill, deliberately
choosing not to raise taxes as a way to fund the massive expansion in
health care entitlements. The Chief's Commerce Clause holding should
therefore have been the end of the matter.
Instead, the Chief
manipulated the law to treat it as a tax, and then held that the taxing
power is broad enough to uphold this law.
There are several
problems with that. First, the President and leaders in Congress argued
vociferously that the individual mandate was not a tax. Second,
Congress did not impose a tax; It imposed a penalty for failure to
comply with a regulatory mandate. Third, if it is a tax, the
Anti-Injunction Act deprives the Court to even here the case. Fourth,
the so-called "tax" did not originate in the House of Representatives,
as Article I, Section 7 of the Constitution requires. It originated in
the Senate. (Yes, I know. Technically the Senate stripped down a House
bill that was languishing there, and then used that bill number as the
vehicle for the Obamacare legislation. To say that the bill therefore
"originated" in the House is a fraud). Fifth, the power to tax is to
provide for the "general welfare," not effectuate massive transfers of
wealth from one group of citizens to another. And sixth, if it were a
"tax," it would be a direct tax, but one that is not apportioned
according to population, as required by Article I, Section 9, clause 4
of the Constitution.
Why does this matter? Aren't these all a
bunch of constitutional niceties that really don't mean much? Actually,
no, if the idea of limited government envisioned by our nation's
founders is to continue to have any force.
Even assuming Congress
has the power to accomplish such broad and otherwise unconstitutional
regulatory purposes by way of the taxing authority -- a dubious
proposition -- the constitutional process for raising taxes is
critically important. In insures that our lawmakers are accountable to
the people for their actions (heck, the unaccountability of the King and
Parliament for imposing taxes on the colonists was the principal reason
we had a revolution!). The requirement that tax measures originate in
the House was designed because the House is most directly accountability
to the people. At the time of the founding, members of the Senate were
not even elected directly by the people; that came about only after the
17th Amendment was adopted in 1913. Even today, every single member of
the House has to face the voters every two years (rather than every
six, as in the Senate), a pretty serious political check on raising
taxes.
And the prohibition on un-apportioned direct taxes was
designed to prevent the use of the taxing power to redistribute wealth.
If Congress can impose a direct tax on some while exempting others,
there would be a serious risk of majority tyranny -- that is, the
prospect that 51% of the population could simply tax the other 49%.
That can't happen with a direct tax that can only be imposed if
apportioned based on population. (Note: This is also the problem with a
steeply progressive income tax, which allows for the same kind of
majority tyranny mischief, but that's a discussion for another day).
But a direct tax with exemptions? Look out.
How does Chief
Justice Roberts address this problem? Well, he ducks it. In a great
bit of circular reasoning, he contends that the tax is not a direct tax
because it doesn't apply to everyone. But that says nothing about
whether it is a direct tax or not; it merely admits that if this is a
direct tax, it is unconstitutional. So why is it a direct tax, in my
view? Well, for starters, because it is not any of the other kinds of
taxes authorized by the Constitution. It is not an excise (such as a
tax on liquor or cigarettes); it is not an impost or duty (such as
tariffs on imported goods); it is not an income tax, because it is not
triggered by your income (although the size of the penalty can be
effected by the amount of your income). It is a tax imposed for notdoing something. That is the very definition of a direct tax. A good analysis of this point was published by my friend, Rob Natelson,
over at Independence Institute. His analysis is spot on. Maybe if the
Chief had had the benefit of briefing on this subject, he might not
have made such a sophomoric error. But methinks he knew exactly how
disingenuous this argument was, and he made it anyway.
What of
the second part of the opinion, holding (by a vote of 7-2) that the
threatened loss of a State's entire Medicaid funding if it declined to
accept the massive expansion in Medicaid mandated by the Obamacare law
was unconstitutional. Many conservative commentators over the past 24
hours, desperate to find a silver lining somewhere in the decision, have
focused on this. True, this is the first time that the Court has ever
held a federal spending grant to states to be so large as to be
unconstitutionally coercive. The Chief called this, quite correctly, "a
gun to the head" of the States, "economic dragooning that leaves the
States with no real option but to acquiesce in the Medicaid expansion."
But that aspect of the Chief's holding is immediately rendered largely
meaningless. If a State refuses to expand its Medicaid program, as
Congress desired, it cannot lose existing Medicaid funding. But its
citizens will still be taxed to pay for the Medicaid expansion
everywhere else. Few, if any, of the States will be able to reject
entry into the new program as a result. The choice will be: Pay for
it, and get some money back in return to cover some of the costs of
expansion; or Pay for it, and send all your money to other states to pay
for the costs of their expansion. That's every bit as much a "gun to
the head" (albeit a six-shooter rather than a bazooka), yet the Chief
does not even discuss that coercive aspect of the Medicaid expansion,
much less find it to be unconstitutional.
Justices Scalia,
Kennedy, Thomas, and Alito authored a joint dissent. That itself is
rare; normally dissents are authored by a single justice and then joined
by others. As noted above, the dissent reads as though it was written
as the majority opinion. We will learn whether that is true or not in
the fullness of time, but likely not until one of the current justices
retires, passes on, leaves their papers to a library archives, and then
we get to the day those papers are unsealed and made available for
public inspection. Then, we will see the initial votes of the justices
that were cast on the last Friday in March, two days after the
conclusion of oral argument in this case.
The dissent is a
powerful defense of our Constitution's system of checks and balances, of
federalism, and of the notion that our federal government is one of
limited, enumerated powers, not one with unlimited power to compel
action by its citizens as it sees fit. My one point of disagreement is
that the joint dissent concedes too quickly that Obamacare would be
valid if Congress had actually chosen to enact it as a tax. In my view,
the Tax and Spend power also has limits. The signature accomplishment
of the Rehnquist Court was to restore the foundational idea that the
Commerce power had limits, but it has been clear for some that that
accomplishment is meaningless if Congress can simply shift to the Tax
and Spend power to accomplish the same unconstitutional ends.
This,
then, is the greatest disappointment of yesterday's ruling. When given
the opportunity to restore limits on the Tax and Spend Power,
comparable to the limits his predecessor was able to restore on the
Commerce Power, Chief Justice John Roberts appears to have blinked in
the face of political pressure. He apparently found the exercise of the
"painful duty" to tell Congress it had exceeded its authority too
painful to actually exercise. Chief Justice Rehnquist had the
constitutional fortitude to do his duty. A Chief Justice Mike Luttig
would undoubtedly have exercised that same constitutional fortitude had
he been appointed to the position instead. Those who pushed hard for
his nomination, greatly concerned that John Roberts had not been tested
in the fire of a landmark decision, have been vindicated. Small
consolation, though, given the damage that has been done to the
constitutional principle of limited government.
Is
there a silver lining? Yes. But it is not simply that this issue now
becomes a rallying cry for those who would seek, following the next
election, to repeal Obamacare. No; it must be more than that. It must
be a repudiation so strong that the Court's decision itself is
repudiated. In 1798, Congress passed the Alien & Sedition Acts,
making it a crime to criticize the government. There was a huge outcry
against the Acts, but the lower courts upheld them as constitutional.
Thomas Jefferson waged his campaign for President in the Election of
1800 largely on repudiating those Acts. He was successful, but the Acts
were not just repealed (or more accurately, left to expire). They were
repudiated. Jefferson pardoned everyone of the conscientious objectors
who had been convicted under the Acts, and the judgement of history has
been that the Court decisions holding the Acts constitutional were
profoundly wrong. That is the exercise of true power by a truly
sovereign people. That is the metal of which free men and women must be
made if they are to remain free. That is now our charge, and our
moment to take our place in the pantheon of American patriots, defenders
of freedom, is now. Will we prove ourselves worthy of the task?
John Eastman
Claremont Institute
